*1 Dist., Dec. Div. One. No. 43440. First 1979.] [Civ. WARDEN, and Appellant, Plaintiff
LEW al., and Respondents. et Defendants
MELVIN KAHN
Counsel Warden,
Lew in pro. per., and Arthur L. Pretzer for Plaintiff and Appellant. *4 Moore, Clifford,
Demanes & Bruce Wolfe, A. Bailey, Bailey, & Larson Trutner and J. Schnack for Jay Defendants and Respondents.
Opinion GRODIN, J. Lew Warden’s appeal Plaintiff is from the superior Kahn, court’s his action defendants Melvin judgment dismissing against Kahn, Blum, Blum, Julius Lorin and Blum & a law That corporation. includes the dismissal of first amended judgment plaintiff’s complaint on the that it fails to state a cause of action ground against any defendants, and the dismissal of second amended plaintiff’s complaint on the that its contents exceeded the which ground permission the court had granted for amended Our conclusion is filing pleading. that the court did not abuse its discretion the second dismissing amended or the first amended as to complaint complaint defendants Kahn, other than that the first Melvin but amended stated a complaint cause of action defendant Melvin Kahn under certain against provisions Act, Code et Invasion of Penal section 630 and Privacy seq., should not have been dismissed as to him. Baсkground
Procedural Warden, The first amended that an attor- complaint alleged plaintiff law, at Melvin Kahn from 1964 to 1974 had defendant ney represented others; and and between Melvin Kahn fol- “disputes litigations” the Invasion of Act in 1967 Melvin Kahn Privacy enactment of lowing “did and without the and consent of record secretly knowledge plaintiff Melvin Kahn” con- and said conversations between plaintiff of such matters; Kahn made the recordings such that Melvin cerning Kahn; and that Julius the defendant Julius conversations available to made the recordings contents thereof and Kahn communicated the Blum, & a law cor- Blum and Blum the defendants Lorin available to fraudulent Kahn in “presenting for the use of defendant Julius poration, con- monetary extort settlements claims and to against plaintiff, and/or which said Julius Kahn Julius Kahn to cessions from to said plaintiff under relief sought judgment was not entitled.” The for justly prayer relief. section 637.2 for damages injunctive Penal Code com- to the first amended Defendant Melvin Kahn filed an answer “important which he admitted plaint other (among but asserted between himself and plaintiff,” conversations and consent defenses) knowledge was with the Kahn, however, demurred generally Defendant Julius plaintiff. 24, 1977, court sustained the trial
first amended On complaint. January Mel- February the demurrer with leave to amend. On 30 days’ vin on the pleadings. summary judgment judgment Kahn moved for G;a heard, filed 22, 1977, plaintiff before the motion could February extensive factual a second amended complaint, pages long, alleging *5 a pot- the first amended and complaint, presenting matters unrelated to on conspiracy, theories and causes of action based of additional pourri fraud, deceit, defamation, intentional malicious prosecution, including relations, and intentional and interference with contracts and business mental distress. Allegations infliction of severe emotional and wrongful in the new appeared to recorded conversations respect the conspir- overt acts which into ripened as one of pleading many on complaint Melvin Kahn to strike the second amended moved acy. that, concerning recordings, for the except allegations ground action,” and on causes of new set forth different “wholly pleading 16, 1977, the motion granting the trial court entered an order
May failure to for complaint time the first amended dismissing at the same and plaintiff was entered accordingly, a cause of action. Judgment state notice of appeal. filed timely trial action of the court’s propriety challenge
Appellant’s us long. need not detain complaint his second amended striking vio defendants’ alleged on solely was founded complaint first amended compláint second amended Act. The Privacy of the Invasion of lation dif- action, entirely violation of an alleging new causes of entirely stated ferent and was primary right, based an upon different set entirely course, facts. Although, will great liberality ordinarily allowed in the amendment of a complaint demurrer, after the of a sustaining settled law that a not party may file an amended complaint which states such (See new and Smeltz entirely different cause of action.
ley
Nicholson Mfg.
v.
Co.
(1977)
932,
18 Cal.3d
Cal.Rptr.
[136
269,
624,
559 P.2d
Austin v.
85 A.L.R.3d
Massachusetts Bond
121];
& Insurance
ing
Co.
(1961)
596,
56 Cal.2d
817,
600-601
Cal.Rptr.
[15
We to the first amended complaint consider whether it was dismissed. The Invasion properly Act Privacy which that was based complaint in 1967 adopted and replaced what one commentator has characterized (Van as a of statutes.” “hodgepodge Boven, Electronic Surveillance in A in State Study Legisla California: tive Control (1969) (hereafter 57 Cal.L.Rev. Boven).) Van act,
The dominant of the objective as reflected in its preamble, “to protect the right (Pen. privacy people Code, this state.” v. Conklin 630. See 12 Cal.3d § Cal.Rptr.
241,
271-272. See also The Law of Electronic Surveillance 2.04.) §
The Invasion of Act criminal Privacy provides for the of- penalties describes, addition, 637.2, fenses which it but in in section it establishes 1Plaintiff also contends in his brief that the precluding plaintiff trial court erred in filing a complaint. any judici third amended No record reference is made to such act, al or to any request permission (See for to file such complaint. a Cal. Rules of Court, 15(a).) rule We find no merit in this contention. on who “[a]ny person
a cause of action the has been in- private part chapter... violation this who against person jured by ” that his first committed violation.... сlaims amended Appellant states facts violation of sections 631 and complaint constituting of which set in the portions margin.2 relevant are forth concerned, Insofar as section is claim is without appellant’s section, merit. That which is has been held quite ambiguous,3 to apply to a third and not to only by party eavesdropping recording by par ticipant to a conversation. Ulrich (Rogers Cal.Rptr. 306].) who, machine, “(a) Any by any 2Penal section person Code 631: means of instru ment, contrivance, manner, any in intentionally taps, or or other or any makes connection, physically, electrically, acoustically, inductively, unauthorized whether or otherwise, wire, line, cable, instrument, any with or telegraph including or wire, line, cable, any or internal telephonic system, instrument communication or communication, willfully who parties any and without the consent of all to or in un manner, read, reads, authorized or attempts meaning or to learn the or contents any message, report, or while passing any communication the same is in transit or over line, wire, cable, from, being such or any place or sent or received at within this state; uses, use, manner, any attempts or who or or any purpose, in for or to commu obtained, aids, with, any way, any nicate in agrees information so or who employs, or do, conspires any any person persons unlawfully or permit, or or cause to be done section, things of the acts or mentioned above in this punishable by a fine not ex ceeding ($2,500), by two thousand five hundred imprisonment county dollars or in the
jail exceeding not year, by imprisonment one or state prison, by in the or both fine such ” imprisonment county jail in the or in the prison.... state who, “(a) Penal Code section Every person intentionally 632: and without the con- communication, sent of parties all to a by any confidential means electronic device, amplifying eavesdrops upon or or records such confidential communi- cation, among whether such communication is carried on such in parties presence device, radio, one by telegraph, of shall be another or of a except means or other punishable by exceeding ($2,500), fine not two five thousand hundred dollars by imprisonment county jail or exceeding year, by imprisonment not one or prison, state or imprisonment county jail the prison. nership, both such fine and in the or in state (b) individual, business, association, ‘person’ The part- term includes an ...[$] legal corporation, or entity, acting purporting other an individual to act thereof, federal, state, any government for or on behalf or subdivision whether or lo- cal, but excludes an individual known all ato confidential communication overhearing (c) or recording such communication. term ‘confidential com- [H] munication’ any may includes carried in such on circumstances as reasonably indicate any to such communication it to be desires confined to parties, public gathering legis- such but excludes a any communication made in a or in lаtive, judicial, proceeding open public, any executive or administrative or in *7 parties other circumstance in the to the may reasonably expect which communication the may be or overheard recorded.” observed, 631, 3As one referring commentator has to section antecedents of “[t]he and, complex this previous statute date back to 1862 as a of result numerous amend ments, Boven, badly (Van simplification.” in need supra, p. 57 at Cal.L.Rev. 1200.) activities, 631 separate dealing Section contains two wiretapping clauses 812 “are much more Its provisions
Section 632 is a different matter. 631, of later ori they because are than section probably straightforward Boven, 1203.) (Van at p. language 57 Cal.L.Rev. gin.” supra, without the who and “intentionally that section applies any person communication, means of any consent of all to a confidential device, or records eavesdrops electronic or amplifying This has uniformly language such confidential communication.” to a confidential communication been construed to one prohibit or consent from that communication without knowledge Olson, (Forest (1976) Inc. 63 the v. Court Superior other E. party. (Second Dist.); Wyrick 188 v. Cal.App.3d Cal.Rptr. People [133 573] (Third 903, Dist.); (1978) 909 see Cal.Rptr. 77 Cal.App.3d 38] [144 Ulrich, (First Dist.) 52 at 899 p. also v. Rogers Cal.App.3d supra, 4 (dicta).) is not of section 632 only upon language This construction notes,5 but, itself, in Olson opinion upon legislative as Justice Ashby’s derives from language and other of the statute. The history provisions (Stats. 1963, 1886, 1, 3871), ch. which p. ap- former section 653j § making “[tap], any unauthorized connection” with it an offense to or first [make] forbidding interception telegraph equipment or wires or and the second during reception and “without the consent all messages in transit or transmission Boven, 1200-1201.) (See supra, pp. 57 at The second clause parties.” Van Cal.L.Rev. participant recording, operative and the terms of first clearly application has no Ulrich, at (Rogers supra, Cal.App.3d p. v. 52 “vaguе are and nowhere defined.” clause ambiguous.” 898.) being “patently respects in some Section 631 has been referred as 598, 923].) we (1971) Cal.Rptr. Since are (People Cal.App.3d 17 602 v. Wilson [94 statute, ambiguous interpreted in favor of dealing penal language so should with a 575, (1944) 401]; In re 24 581 P.2d alleged (People Ralph v. Cal.2d violator. [150 250, Superior (1959) 553]; and see Keeler v. Court Cal.2d 257 P.2d Tartar 52 [339 481, 420]; People 40 A.L.R.3d (1970) Cal.Rptr. 470 P.2d 2 Cal.3d 631 [87 675].) (1968) Cal.Rptr. 442 P.2d 69 Cal.2d 46 v. Baker [69 (1972) Cal.Rptr. 66], and in Cal.App.3d 288 People 4In Buchanan v. [103 328], language (1977) Cal.Rptr. there is People Cal.App.3d v. Soles “eavesdropping,” but in neither case was applies to privacy to the effect that the that act Buchanan, the remotely consideration here. In language related to the issue under inadvertent, intentional, only opposed to proscribes question was whether the statute 287), (26 p. in Cal.App.3d at Soles overhearing intercepting of communications manager staying on the line after of motel in was whether the action question guest “electronic eaves сonnecting of a constituted incoming an call with the 420). (68 Cal.App.3d p. Neither case meaning at dropping” of the statute within (1970) (Young) recording. (Cf. Superior Court also participant involved Cal.App.3d 699]; People v. Cal.Rptr. Jones Cal.App.3d 852, 548-549 [91 749]; People v. Carbonie Cal.Rptr. 854-855 [106 831].) dissenting opinion does not opinion, the Olson 5Contrary implication Ulrich,” engages rather but authority Rogers upon the place its “sole reliance opinion language, which this legislative history analysis of independent heavily. borrows *8 communication,” to a a to plied “not the who only person agent party or recorded a confidential communication “without the eavesdropped Since the represents consent of any party.” quoted language practically statute, the implication legislative from former of only changes intent to make section 632 seems applicable participant recording is underscored section substantial. That reasonably implication 633.5, which in Section 631 or 632 shall be provides “[n]othing as construed one to a confidential communication prohibiting party such communication for the of evi- recording purpose obtaining dence believed to relate to the commission reasonably by another party to such communication of As specified the appellate [certain crimes].” Olson, court noted in Forest E. of in presence section 633.5 supra, the Invasion of Act is inexplicable except on the Privacy assumption that the at Legislature portion intended least some of the act to apply (63 192.) participant p. at recording.6
Finally, coverage of is participant consistent the legis- lative declared policy in section 630 “to protect right of privacy of this people state.” While is true that a person participating what he reasonably believes to be a confidential communication bears confidence, the risk that the other will party his there is as one betray cоmmentator has noted a as well a “qualitative differ- quantitative ence between secondhand repetition by listener and simultaneous auditor, dissemination ato second whether that auditor be re- tape (Van Boven, corder or a third party.” 1232.) at supra, p. Cal.L.Rev.
“In the former situation the retains speaker control over the extent of his immediate audience. Even though that audience his may republish words, secondhand, it will be fact, done after the probably not entire- and the ty, will impact depend upon the credibility teller. Where involved, however, electronic monitoring speaker is deprived the right to control the extent his own firsthand In dissemination....
this regard participant monitoring resembles surveil- closely third-party lance; both practices deny speaker most important aspect of dissenting colleague suggests “may 6Our that section 633.5 also deemed but an it preamble, eration of the proscribing only Act’s ‘eavesdropping.”’ If that were the 633.5, however, function of section there would certainly have been no reason to limit its application only particular kinds of conversations. disagree We dissenting colleague's also with our suggestion that section insofar others, permits as it communication to disclose its contents somehow inconsistent with interpretation prohibiting recording section 632 as a conversation. For stated opinion, reasons elsewhere in our find we the distinction quite reasonable. *9 to control the extent first in right of communication—the
privacy (Ibid.) In terms statements.” of common stance dissemination of his differently we are to react conversa experience, all likely recorded, and to feel our in a privacy tion we know is confidential being the deeply by potential to be far more for un communication invaded an actual of our voice. Van transcription authorized dissemination of few states to that “is one of the have outlawed Boven states California This the parties. major monitoring private change participant ” (Id., 1235.) . at p. Act . . . Privacy effected that in criminal principle pros mindful of general We are benefit of doubt as between be given ecution the defendant should Ralph, (E.g., of a statute. interpretations penal plausible two of that is that it is 581.) principle at The other side supra, p. Cal.2d until the statute is construction and cannot be invoked an aid to “only defendant.” particular or uncertain as ambiguous applied shown to be (Pe 10 Cal.3d v. Alday ople do not or here. ambiguity uncertainty P.2d We find such 1169].) but is, course, criminal we note a civil rather than a proceeding;
This in a criminal applied 632 has been our of section interpretation that based indefiniteness. context, upon alleged attack constitutional against and upheld (Peo 907.) at p. 77 Cal.App.3d v. Wyrick, supra, ple to the fair “according to be construed of the Penal Code are provisions (Pen. Code, 4.) We believe fair import of their terms.” import § we express. interpretation is in with the seсtion 632 accord fact, section 632 one concede that prohibits Respondents, a confi intentionally conversation from to a telephone consent of other. knowledge without dential communication was involved be communication” contend that no “confidential They such that “the were cause circumstances the communica expect[ed] may reasonably [have] (c).) (Pen. Code, subd. or recorded.” overheard tion § [would] no for expecting should have basis attorney that an broadly They argue confidential, and secret or will be his client consultation exists evidentiary privilege that the attorney-client to the fact point they nar more client, They argue also attorney. not the for the benefit blind, that an Kahn fact that Melvin stipulated based on the rowly, that his law to expect a matter of must be held as attorney will be recorded. blind client with a conversations
We are unable to either accept argument as a matter of law. The definition of “confidential communication” in section transcends *10 the of an It ownership evidentiary privilege. calls for determination as to whether the “circumstances... reasonably indicate that party to any such communication it desires to be confined to such or wheth- parties,” er the circumstances are such that “the to the
may reasonably expect that the communication be. . may .recorded.” That one of the parties other, conversation a client of the “owns” a which privilege he waive to may testifying as the by contents of the conversation well may part be of the “circumstances” to be con- sidered, but is hardly determinative of the issue. statutory Similarly, the added fact that the client is blind increase the likelihood may of the attorney’s expectation recorded, the conversation will be but the statute does not permit us to elevate that probability to level of a conclusive presumption.7 plaintiff action, If persist chooses to in his dеtermination as to whether plaintiff knew or consented to the record- ing client, of his conversations his or whether he should reasonably expected have recorded, that the communication would ques- will be (Cf. tions for the fact finder. v. Pedersen People Cal.App.3d 987, 994 Cal.Rptr. 577]; v. Baker
115, 123 Cal.Rptr. 362].) observe, however,
We do that section for an provides 637.2 action only person “the who against committed violation.” While the first amended complaint is sufficient to state a of action against cause Mel- Kahn, vin it contains no allegations rise a violation section giving them, 632 on the Thus, of the as part defendants. the first remaining amended complaint dismissed. properly
The below insofar as it dismissed the second amended com judgment defendants, is affirmed as as plaint to all and insofar it dismissed the first amended complaint is affirmed as all defendants other than first dismissing Melvin Kahn. amended judgment argue interpretation depriving 7The Kahns of section as their brief that right attorney’s deny person blind to record his advice would have the effect of ing person equal protection laws such under the Fourteenth Amendment Constitution, We, speech the federal well freedom of under the First Amendment. as course, adopt Nothing prohibit a interpretation. do not such an in the statute would knowledge person attorney attorney’s blind of his with the advice consent, expect attorney or under circumstances in which the otherwise had reason to being that the conversation was recorded. and remanded for further pro- is reversed8 as to Melvin Kahn complaint herein. expressed Appellant with the views not inconsistent ceedings appeal. to bear costs of
Racanelli, J., concurred. P.
ELKINGTON, J. dissent. respectfully I have, inter- we by judicial controlling opinion
As I read our court’s with a coverage statute penal innovative fashioned an pretation, rejected by a statute was expressly Such Legislature. unintended *11 the the states of among found elsewhere and is not to be Congress nation. who, of means “Any person by 631 provides:
Penal Code section manner, contrivance, instrument, intentionally or in other any . or any.. connection,[1] whether... inductively,[2] or makes unauthorized taps, any .,. or who otherwise, . wire... or instrument. or . any. the communication of all to parties and without the consent willfully to use, manner, or for or uses, any purpose, to in any . . . or attempts obtained... is punishable” in information so any way, any communicate etc. had appears the record that the statute limitations argue that it from 8The Kahns argument upon alleged violation. This based
expired any Penal Code section 632 on 1976, to November the effect allegations complaint, filed in the of the first amended 19, 1974. While the first alleged recordings July 1964 and occurred between that until alleges plaintiff did not discover the recordation complaint also that amended April 27, 30, 1976, argue by a dated June allegation is belied letter the Kahns that Kahn, with Melvin Kahn’s declara which was submitted plaintiff to Melvin summary judgment, and which makes reference support in of a motion for tion Thus, argue plаintiff the Kahns that recordings... surreptitiously made.” “numerous 27, 1974, was by June and that action knowledge recordings at least had both for actions prescribed of limitations one-year period therefore barred a Proc., general 1) (Code and for tort Civ. subd. penalty for or forfeiture § statute Proc., 3). (Code subd. actions Civ. § court, potential and involves a factual the trial argument was not raised in Since this guidance issue, We note for the inappropriate. appeal its on would consideration however, remand, contending correct in that respondents are that trial court on meaning of Code “statutory or within the penalty forfeiture” 1. is one to recover action (Cf. v. Nelson Holland section subdivision of Civil Procedure 117].) Cal.App.3d Cal.Rptr. 312 [85 company, without the consent line of a 1Any with the connection made Superior (People 631. meaning of section within company, is “unauthorized” 699].) 548-549 (Young) Court telephone connections “unauthorized” agreement the instant parties 2The are “induсtively.” were made It pleaded in the that defendant Melvin Kahn did complaint each of those acts. Yet we hold that section 631 was not vio- performed lated, a third it applies “only eavesdropping by because (Italics added.) not to conversation.” recording by participant relevant, who, Penal Code section states: person inten- “Every and without the consent all tionally confidential communication, device, [telephone] means any...recording eaves- drops upon or records such confidential communication... shall be etc. punishable”
Here again complaint that defendant alleges Melvin Kahn did However, and performed each of those acts. we hold section 632 because, it does unlike section transgressed “to a par- apply violation, ticipant follows, to the conversation.” Such a is felonious and punishable by imprisonment state and a prison forfeiture of $3,000 637.2) $2,500 (§ (§ 632) to the other for participant each such recording, regardless whether were damages actually suffered. *12 shall,
Manifestation of a legislative intent that section 631 and sec- not, tion 632 shall to apply “only is not eavesdropping” readily observable.
Our opinion’s reliance is controlling tripartite. (1) It is upon: “dominant objective of the of Invasion act re [Act], as Privacy] [Cal.
flected preamble,... in its ‘to protect right privacy people state’”; (2) i.e., of this Boven, law review commentary, Electronic Van Surveillance in A in State Study Legislative Control (1969) California: (hereafter Boven); Mr. Van 57 Cal.L.Rev. certain cases of i.e., the state’s Courts of Wyrick v. Appeal, Cal. Olson, Cal.Rptr. 38], Forest E. Inc. Court
App.3d Superior [144 (1976) 63 Rogers v. Ulrich 573], and Cal.App.3d Cal.Rptr. [133 (1975) 52 [125 306].
The Act’s preamble does more than reflect a desire legislative to “protect right of this privacy people state.” That protec adds, tion, will be effected Act’s proscription “eavesdropping communications.” upon private preamble does not exceрt section 632 from the Act’s declared purpose. One who records his telephone conversation another is patently not “eavesdropping.” to listen (“[E]avesdrop...: to what is said in secretly private....” (Webster’s (3d New 1965) 717.) Thus, Internat. Dict. ed. the Act’s p. to its “confidential a party eliminates purpose declaration
express from its coverage. communication” telephone to the few states “is one of asserts that California
Mr. Van Boven (57 Cal. parties.” by private participant monitoring have outlawed cited for L.Rev., 1235.) opinions to the two judicial Recourse p. states, Penn- discloses, California, such two only aside
proposition
Illinois.
sylvania
(1966)
The first of purpose A.2d concerned statute whose 102], “precise [was] communications those who punish intercept [italics added] of an in- A both detective’s parties.” without the consent of with the consent of one conversation criminating Within the interception. year be communication was held to such that a participant might as it suggested сase was insofar disapproved that he over a telephone own with another not record his conversation (Commonwealth (1966) 208 v. Goldberg using. was otherwise rightfully not now may reasonably 91].) Murray A.2d Pa.Super.
deemed authoritative.3
scriber has an absolute
own
scriber’s line from
tive ‘from the
ground
The
eavesdrop
terception by a subscriber on
case was
States
interceptions on his own
third
tion
his
that the
Donnelly
(Commonwealth
made of his own
had a
terception
nia
rather than the
306,
Pa.Super.
(United
L.Ed.2d
3“[Murray] prohibits the use of
case,
telephone
Pennsylvania Supreme Court
line. The
between the
315 [cert.
party
‘paramount
v. Shaffer
that
States v.
744,
Murray
Commonwealth
distinguished in
(1975)
was not
in this case
(private
96 S.Ct.
conversations”]
Goldberg
transcript
Of the two relied Mr. upon by statutes Van Boven for his conclusion that of as recodified in Michigan, the same apparently language, pro- vides that person “wilfully who uses device” to . . “record. any any (italics part added) of the private discourse others” to subject (Mich. Ann., 28.807(1), criminal sanctions. 28.807(3).) Stat. Par- §§ ticipant not The other statute is of Nevada. proscribed. As relevant, it recites: is unlawful for or at- any person intercept “[I]t tempt (a) wire intercept any unless: Such interception or is made with the attempted interception prior consent of ” (Nev. one of the parties Stat., . . communication. . Rev. 200.620.) of one’s Recording telephone cоnversation not reason- may
§ (See be deemed ably of it. “interception” Parkhurst Kling, supra, F.Supp. ante].) [fn. (at Judicial or other least as of for Mr. Van support today) Boveris dictum that “is California one states to have outlawed par- few (italics ticipant monitoring added) is thus by private parties” completely lacking. conclusion,
question before us. We
primarily
adhere to our earlier
neither
because
law
prohibit
intended
one
conversation from
con-
‘dirty
versation for
purposes.
sought
his own
business’
to be terminated
Pennsylvania
interception
recording by
statute was
parties
third
of communi-
cations
recording by
without the consent of all the
When
thereto.
one
his
‘interception’
conversation with another shall have become an
of their conversation the
(Parkhurst
word ‘intercept’
meaning
shall have
a new and
taken on
different
indeed.”
(E.D.Pa. 1967)
Kling
781.)
F.Supp.
controlling
judicial interpretation
4“The Kurth
*14
leg
decision.. .is not
as it was a
aof
intent,
legislation
islative
(1974)
changed
(Peоple
which
has been
since that decision.”
v. Drish
Ill.App.3d
183].)
24
prior Eavesdropping
225
N.E.2d
“Under the
[321
Statute,...
court,
interpreted by
supreme
by eavesdropping
as
our
evidence obtained
person against
being
devices could
used
not be
unless the
whom the evidence was
of
Kurth,
recording.
fered
People
had consented to its
34
v.
Ill.2d
I turn to the
offered for our
remaining support
controlling decision.
Without
v.
903.
consideration
People Wyrick, supra,
Cal.App.3d
(italics
of proscribing
of the Act’s stated purpose
“eavesdropping”
communications,
Forest E.
added)
court relied upon
upon private
Olson,
Court,
Inc.
Common-
supra,
v. Superior
Cal.App.3d
(1971)
Forest Rogers v. authority its reliance sole placed Here court Ulrich, 894, which will now be discussed. 52 Cal.App.3d supra, Ulrich, 52 par- 894. In a context closely
Rogers supra, v. bench, filed fashioned awkwardly at Rogers the case alleling Count 1 Ulrich. privacy against for invasion of complaint two-count conversation,” which of a was “for for recordation damages here, Penal under brought, so stated was not although expressly was founded on section expressly count Code 632. The second section the first as to defendant Ulrich granted 631. Summary judgment him on count 2. later, trial, was entered for judgment count and after Division Four were affirmed Upon appeal, judgments Rogers’ Act, the appel- ambiguity court. Faced with the recognized this goes scope 632 “arguably beyond late court held that section the record- but also eavesdropping, not only in prohibiting section 631 of all parties the consent without of a confidential ing McCoy, person who records his supra, 275 A.2d held that a 5Commonwealth communication, con “intercepted” the with another has conversation own and, think, ante) (see I reason. As by Pennsylvania fn. cept repudiated elsewhere recording by one of Kling, supra, 781: “When F.Supp. said in Parkhurst ‘interception’ of their conversation have become an with another shall his conversation (And see meaning indeed.” a new and different ‘intercept’ shall have taken on the word 3, ante.) generally fn. *15 899; (P. added.) But, to the communication.” italics in thаt resolving itself to the issue ambiguity, “whether the statute covers addressing of a recording conversation made a rather than a participant 898), third party” (p. the court stated: “Penal a Code section 630 is intent; declaration of it legislative finding speaks preventing and other eavesdropping invasions thus privacy, suggesting par- was to ticipant recording not meant be included. is the ‘Eavesdropping’ with; to problem Legislature meant deal in ‘eavesdrop’ defined Webster’s Seventh New Dictionary as ‘to Collegiate listen se- to what is in cretly said It is never a secret to one a private.’ party conversation; conversation that the other a party listening only third can listen party secretly to conversation. The trial court private in right did determining evidence not make out appellant’s 898-899; added, omitted.) case under the (Pp. statute.’ italics fn. v. Ulrich thus
Rogers furnishes neither for support People Wyrick Olson, Court, and Forest E. Inc. nor for the Superior controlling authoritative, Indeed, this opinion appeal. if considered it mandates affirmance of the before judgment us.
Nevertheless, it must be conceded that the Act contains some ambi- Boven, This is guity. Mr. Van suggested by who advises that the Act is product of an earlier “hodgepodge of statutes” which “left much to be desired.” It is “flawed” with “ambiguities” and “deficiencies and over- sights,” (57 Cal.L.Rev., and it “is in need of badly simplification.” it And passim.) has been observed that judicially in “some aspects provisions are patently ambiguous.” v. Wilson (People [the Act] added.) italics Cal.Rptr. 923]; ambiguity Act is also pointed up by controlling our opin- ion where we consider the of Penal Code following language section 633.5: “Nothing Section 631 or 632 shall be construed prohibiting one to a party confidential it aid recording communication” law enforcement. A meaning perhaps be inferred that since may section 632 does not also provide, so it does “one to a prohibit confiden- party tial communication” from it. But also section 633.5 may deemed but an iterаtion of the Act’s preamble, proscribing “eaves- only Section 637 is also dropping.” significant; purports permit to a who telephone communication records it without permission other, to disclose the persons exposure to third without freely sanctions; Act’s such a at seems odds statutory indulgence wholly *16 constitut- nevertheless making that the
with a purpose ed a felony. Mr. Van Bo- in the Act lend force to
Such contradictions appear in need of “badly of “ambiguities” of “hodgepodge” ven's observation Legisla- detract from the reasonably do not they but simplification,” “eavesdropping” upon abolish announced clearly objective ture’s communications. private is, course, by created sec- immediate concern our ambiguity proscribing “eavesdropping upon private stated purpose
tion 630’s communications,” upon, forbiddance of eavesdropping and section 632’s whether, the un- The issue is by such communications. recording,” “or the Act’s intended “recording,” Legislature term qualified whо communications does private sanctions also apply not, them, cannot, and thus does eavesdrop but record nonconsensually them. upon “in light should be read us ambiguous by objec An statute ” it,. (1970) 1 3d .. v. Carroll Cal. (People to be achieved sought
tive added.) discor 463 P.2d italics Its 400]; Cal.Rptr. [83 “harmonized,” “reconciled,” and the provisions dant should be (Associated if at all possible. both” should be maintained “integrity of etc., (1976) 18 Cal.3d Inc. v. Livermore City Home Builders 1038]; People 557 P.2d 92 A.L.R.3d 596 [135 (1946) 28 Cal.2d P.2d Penziner West 1]; Trieber all 252]; 10 Cal.2d P.2d American Finance Co. added.) italics the two code sections does not
Such a reasonable accommodation of appear difficult. private tele- “eavesdropping” upon
In a statute drafting proscribing that a closely it would soon become apparent phone communications evil, would be the nonconsensual re- possible “loophole,” related which, at least third party of such cording “eavesdrop- the narrow definition of would not come under debatably, might an evil the Legislature reasonably with such cope To ping.” “or records” to the word added the words section have drafting purpose, stated expressly section 630’s “eavesdrops,” relying circumstances where under meaning the statute give eavesdropping.. would have been listening, actually the malefactor, if *17 construction, Other and of principles rules statutory my opinion, mandate such a construction. is, course,
It
of
a fundamental
rule of statutory
interpretation
should
the court
ascertain
intent
so as to
Legislature
of
effec
tuate the
the law.’”
purpose
(Tripp
(1976)
671,
v.
Swoap
17 Cal.3d
of
789,
added;
679
Cal.Rptr.
Reasonably, and the Legislature’s authoritatively, purpose will best be when it is perceived stated in the statute. expressly “[Ojrdinarily that, is the rule when the states law-making power its distinctly design in the no room is statute, enactment of a particular construc- for left tion,. (Coulter . .” Pool 181, v. (1921) 187 Cal. 185 120], P. [201 added; italics v. Birks Bros. (1925) 345, 75 349 Cal.App. [242 Federoff 885].) P. noted,
As has been Penal Code section is a preamble 630 to the Act. It “declares” the to be the “of eavesdrop- legislative purpose prevention (italics ping added) private communications” thus to “protect the right privacy of this state.” one is people By definition who to a party communication cannot it. The Act’s ex- “eavesdrop” upon press declaration of eliminates a to its purpose accordingly described telephone “communication” from its As coverage. stated by Pool, Bros., Coulter v. 181, 185, v. Birks 187 Cal. supra, Federoff 345, 349, construction,. 75 left supra, Cal.App. “no room is for . .” It at that we are may properly point this concerned emphasized with a penal statute state term three imposing possible prison years for its violation. “When susceptible which is two language reasonably constructions is law ordinarily used that construction which is penal more favorable to the offender will be adopted.” (People Ralph v.
(1944)
575,
401].)
24 Cal.2d
581
P.2d
The accused violator “is
[150
. .con
entitled to the benefit of
reasonable doubt... as
the.
every
(In re
(1959)
Tartar
52 Cal.2d
struction of
used in a statute.”
language
Keeler v.
Court
250,
(1970) 2
257
Superior
P.2d
see
553];
[339
This principle that “. . . a statute which either forbids or ple constitutional law in of an act in terms so men common requires doing vague must at its and differ as to its telligence necessarily guess meaning (Connally first due of law.” process violates the essential of application, 322, 328, Co. v. General Const. U.S. L.Ed. Bowland Court (1976) 18 Cal.3d 126];
S.Ct. Municipal P.2d “‘If a statute of two 1081].) susceptible *18 constructions, it one of which will render constitutional and the other con unconstitutional in whole or in or raise serious and doubtful part, which, will the construction stitutional court questions, adopt used, to the reasonable meaning language without violence doing in or freе doubt as to its entirety, will render it valid its constitu equally even other construction is reasonable.’” tionality, though (Shealor 647, Lodi (1944) 23 P.2d 574]; City Cal.2d 653 v. [145 of 625, 139, (1936) 2d P.2d Riley Los v. 6 Cal. 629 County Angeles [59 106 903].) A.L.R.
Moreover, out, as and as the Act tre pointed imposes plaintiff urges $2,500 $3,000 or each or cumulative for ble damages, forfeitures law tradi to the actual suffered. “The regard damages violation without and them are to be imposing disfavors forfeitures statutes tionally Ins. (1971) 5 Bonding v. United Co. Cal.3d (People construed.” strictly Irwin Irwin 57, 1385]; P.2d and see Cal.Rptr. 489 [98 two more 9].) “Of or 69 Cal.App.3d [138 constructions, which avoids a forfeiture ‘the construction possible Stores, (1954) Inc. (Flagg v. Andrew Williams be should favored.’” 294].) P.2d a trust a tele- concluded that breach of It must also be reasonably with another own conversation his communicant phone or eaves- interception, a evil than third-party far less of presents public Mr. Van rationale, think, is recognized. we widely dropping. Such monitoring Boven concedes that participant “the effect of chilling surveillance,” and is “relatively less than that of third-party generally at most should, as a misdemeanor he “be classed says, innocuous.” It (57 Cal.L.Rev., altogether.” criminal sanctions freed from and possibly Legislature that the 332.) It most unlikely seems 1240 and fn. pp. of the Act nevertheless, awesome intended, penalties to visit the who, eavesdrop- of neither guilty as Melvin Kahn situated persons of his own made a simply nor interception, ping another. conversation with
It is next Act noted that has federal title counterpart Code, 2510-2520, entitled, United sections “Wire chapter States Interception Interception Oral Communications.” Section statute, relevant, “It shall not unlaw- l(2)(d) provides: intercept under this for a .to wire or oral chapter person.. ful communication where such person the communication where one to the communication has consent given prior (Italics added.) to such ...” interception.
The federal comports statute with the rationale Justice following in Katz White, United States Byron 389 U.S. concurring 576, 589, fn. L.Ed.2d one man speaks S.Ct. “When 507]: another he takes all the risks inherent in so ordinarily doing, including the risk that the man to whom he will make what speaks public he has (or heard. The Fourth Amendment does protect against not unreliable It is but a law-abiding) associates.... reasonable extension logical *19 hearer, principle this that a man take the risk that his free to memo rize what he hears for later verbatim is instead it repetitions, or transmitting it to another.” Lesser federal courts to have con appear sistently applied statute, that rationale in of the federal respect related United (4th constitutional In States DeVore principles. v. Cir.
1970)
1069,
(cert. den.,
423 F.2d
119,
1074
States 1968) den., Cir. 404 F.2d 919-920 393 U.S. [cert. (21 1086 L.Ed.2d 89 S.Ct. 872)].) It is reasonable assume that had California’s intended to from this Legislature depart widely accept ed rationale it would have said so in unmistakable language.
Consideration is overdue
of the related
on the
perhaps,
expressions
Auto
(See
before
Equity
subject
us
California’s
Court.
by
Supreme
Sales,
(1962)
Cal.Rptr.
Inc. v.
Court
Cal.2d
Superior
[20
P.2d 937].)
(1978)
Court
Cal.Rptr.
Tavernetti v. Superior [148 People’s the Act upheld against P.2d court high 737]. a telephone that the fruits of third-party eavesdropping contention so, it In doing not be evidence. suppressed communication should communication, wire 192): of a private stated “When contents (p. not conversation, one a by party are intercepted telephone e.g., (italics added) communication, disclosure to be penalized” Act. 241, 522 Cal.3d 259 Conklin Cal.Rptr. system designed The defendant had “installed
P.2d
[and used]
1049].
1)
of others.
conversations
fn.
(p.
private
intercept”
to a
that all
requirement
The court held that the Act’s
it was
third-party interception
their consent to
give
272, fn.
It was iterated (p.
federal law.
not
conflict with preemptive
interception
of wire communications.”
12)
the Act
“the
prohibits
(Italics
monitoring
the Act forbids
added.)
appears
No suggestion
to the communication.
People Murphy *20 (cert. den., Here the 173]). 94 S.Ct. 414 U.S. L.Ed.2d 594] conversation was viola the of a contention that the It was held that rights. tive of accused’s Amendment Fourth . only was “intended . protect. persons constitutional to guaranty ., of trust one of the ‘uninvited . not from breach by ear’. Further, “We (P. 359.) ...” the court observed: conversation. in person faces that . . . distinction between the risk one perceive no about testifying will trust by whom he confides later breach him already such has person betrayed and the risk that conversation electronically their conversation and is instantaneously transmitting can . . . ‘For no other argument with radio receivers. police equipped agent version a conversation an accurate justify excluding in took petitioner We think the risk that memory. could to from testify offer the risk that included fairly a bribe to agent] offering [the court, memory faultless whether by would be accurately reproduced (P. 360.) or mechanical recording.’” are also instructive.
Two cases of the state’s Courts of Appeal Ulrich, Rogers 894. This supra, Cal.App.3d authority has been - 821, ante.) (See discussed. fully pp. v. Buchanan expressly apply only sections to in- prohibitory “[T]he [Act]
66]. (Italics added.) tentional wiretapping [i.e., eavesdropping.” § 631] Mr. Witkin’s review of the Act found no to hold purpose its sanctions. He concluded: subject “New .i.e., P.C. 631 covers the subject P.C. 640. . crime of un- repealed interception authorized communications ‘without the consent of all and that “New P.C. 632 covers the parties’” P.C. subject repealed i.e., on a eavesdropping means 653j, ‘confidential communication’ ‘any (Witkin, electronic device.’” Cal. amplifying Evidence (1977 II) Evidence, 2d to ch. Exclusion of Obtained supp. Illegally 147B-147C, 301-302; added.) pp. italics §§
For all of these reasons I am of the that our in re- opinion holding of section 632 of the Act is spect erroneous. another,
For yet undiscussed, and heretofore reason result we have reached is to be believed me legally unacceptable.
Our controlling opinion’s holding rests only Penal Code section 632. Plaintiff Warden’s contentions insofar as are based upon sec- they tion 631 have been rejected.
A strict requirement for the application section is that its sub- communication,” which is defined to include ject “confidential “any communication carried on such circumstances as may reason- ably indicate that to such any party communication desires it to be confined to such parties,...” *21 were,
Plaintiff Warden and defendant Melvin Kahn at- respectively, and torney client. The communications the case concerned Warden’s Kahn legal representation of “disputes litigations” others.
In respect of a “confidential communication” between a lawyer client, (Evid. the client is the Code, 953); the “holder of privilege” the § If the shall “waive” lawyer not. client the he will termi- privilege have (Evid. Code, “is 912). nated its in no lawyer confidentiality § (Abbott v. Su own on his privilege to assert position [such] behalf.” italics P.2d 317]; 78 perior Court (2d 1966) Wit added.) (And Witkin, Cal. Evidence ed. see generally nesses, be must reasonably 794 et 739 et Here client seq., seq.) p. § his deemed, law, confidentiality matter waived the as a have latter, with his It follows that attorney. communications Warden, under Penal Code had stated cause action plaintiff Lew no section 632.
I in its entirety. would court superior affirm judgment J., A 1980. petition for a was denied rehearing January Elkington, be Appellant’s peti- was of should petition opinion granted. was 1980. tion for Court denied hearing by Supreme February Bird, J., should opinion petition granted. C.